Witness Statements as Cross-Cultural (mis)Communication? Evidence from Blue Mud Bay

Abstract

Translation, broadly defined as the articulation of the relationship between different cultural, social and legal systems, is at the heart of the anthropologist’s or linguist’s role as an expert witness in a native title hearing. It occurs at the level of individual lexemes, in categorising cultural concepts, and in the frame of the legal context. We exemplify the interrelationships between these by focussing on the quasi-legal use of the English word ‘permission’, a key concept in native title and land claim discourse. In the Blue Mud Bay case, Yolngu Matha was the first language of the witnesses, and there is no straightforward translation for this use of ‘permission’ in Yolngu Matha. As the ‘experts’ we needed to anticipate how Yolngu would understand the concept and its relevance to the court case. We first summarise our exploration of ‘permission’ with the claimants and show how a cross-cultural understanding of the ‘legal’ English concept emerged. We then focus on one of the court’s main artefacts of translation—the witness statement—which must be produced or be translated into English. In our experience the witness statement is a product of a dialogical process involving the close collaboration of applicant (witness), counsel and expert. We reflect on the complexity of this process and how it operated in the Blue Mud Bay case. We conclude that translation is both possible and necessary in the conduct of native title cases. But it is not straightforward, nor should it be an unexamined process.